The Pentagon’s transfer of $3.6 billion, from already-approved military programs to pay for a stretch of fencing along the U.S.-Mexico border, may seem like an obscure bureaucratic maneuver. But in fact, it’s a blatant test case of President Donald Trump flexing his “emergency powers” in an unprecedented way—which, if it’s allowed to stand, could inspire many more power grabs in the future.
Ordinarily, statutes bar the executive branch from “reprogramming” more than a few million dollars, from one set of projects to another, without congressional approval. Andrew Exum, the deputy assistant secretary of defense for Middle East affairs during the Obama administration, tweeted on Tuesday:
I once repurposed some excess funds we had earmarked for Ebola-related contingencies to buy blankets and cooking fuel for refugees fleeing the Islamic State and had to get four separate congressional committees to sign off on it before I could spend a dollar.
And that was for excess funds—money appropriated but no longer needed. To build a piece of his wall, Trump ordered his defense secretary to raid funds for projects that were still in the works. The canceled—or, as Pentagon officials prefer to call them, “deferred”—programs were for a vast array of construction projects on U.S. military bases at home and overseas: family housing, schools, firing ranges, a new cybersecurity training center. At a Sept. 3 news conference announcing the move, Pentagon spokesman Jonathan Hoffman expressed the hope that, at some point soon, Congress would restore the deleted programs.
Trump has justified the transfer by invoking a rarely-used statute—Title 10 of the U.S. Code, Section 2808—which allows funds for military construction to be reshuffled, without restriction, in “the event of a declaration of war or the declaration by the President of a national emergency.” (All the deleted projects—127 of them—were in the defense budget’s “military construction” account.)
Back on Feb. 15, Trump declared the need for a border wall to be a “national emergency.” Lawsuits were filed at once, challenging the legitimacy of the emergency. One point made in these suits was that Trump didn’t declare an emergency until after Congress turned down his request—made through normal budgetary channels—to fund the wall. Another was that, on the same day that he declared the emergency, Trump admitted there really wasn’t one, telling reporters, “I could do the wall over a longer period of time. I didn’t need to do this”—that is, he didn’t need to declare an emergency.
This point was, perhaps unwittingly, bolstered at this week’s Pentagon press conference, when Elaine McKusker, the Pentagon’s comptroller, said that construction of the wall couldn’t begin for 100 to 140 days. In other words, a full year might lapse between the time of Trump’s declaration and the beginning of fence construction—hardly an emergency, in the everyday sense of the word.
Officials at the press conference said that the $3.6 billion would pay for a 175-mile stretch of wall. That would cover a mere 8 percent of the 1,954-mile border between the United States and Mexico. Some of that stretch would consist of new wall, while some would be reinforcement of existing fencing; the officials didn’t quantify the distinction.
In the initial court case on Trump’s announcement of an emergency, the judge sided with a motion by the Sierra Club to bar spending on the wall, citing the rejection by Congress and the harm that might be done to the environment and privately held land. (The Washington Post reported last month that, in a rush to complete 500 miles of wall by Election Day, Trump told aides that if the necessary land grab were deemed illegal, he would pardon the lawbreakers.)
However, on July 26, in a 5–4 vote, the Supreme Court lifted the lower court’s stay and allowed Trump to proceed with his plans for the wall—though the lawsuits challenging his policy will also proceed, meaning the court might reconsider the issue at a later date. Still, the Court has almost always granted presidents wide leeway in carrying out their Article II powers, as they see fit.
In his dissent, Justice Steven Breyer wrote, “This case raises novel and important questions about the ability of private parties to enforce Congress’s appropriations power.” Indeed. The questions are particularly important, given that Congress itself seems less than eager to assert this power—or at least that’s the case with the Republican-controlled Senate.
Rep. Adam Smith, Democratic chairman of the House Armed Services Committee, released a statement on Tuesday condemning the Trump administration’s move to divert Pentagon funds. But the House alone can do little to block the move, especially if the Supreme Court upholds its legality.
All told, military construction projects are crucial to the readiness of U.S. military forces and the comfort of their families. It’s hard to say, just from reading the list of deleted projects, how many of them are in fact needed, how many can safely be deferred, and how many amount to pork-barrel for the districts of powerful members of Congress. In that sense, messing with “Mil Con” does carry political risks. The projects Trump is messing with are spread out across 23 states, including such potential 2020 battlegrounds as Arizona, Colorado, Florida, New Mexico, North Carolina, Texas, and Wisconsin.
Trump probably will win this battle in the courts, but he may lose at the ballot box.